Citation Nr: 18155164 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 16-43 973 DATE: December 3, 2018 ORDER Service connection for depressive disorder and adjustment disorder is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s current depressive disorder and adjustment disorder are related to service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, depressive disorder and adjustment disorder were incurred in service. 38 U.S.C. §§ 1110, 1111, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2001 to August 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi which denied service connection for adjustment disorder with anxiety and depressed mood. Service connection for depressive disorder and adjustment disorder is granted. Service connection will be granted if the evidence demonstrates that the current disability resulted from an injury or disease incurred in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, direct service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is evidence that a disability preexisted service, the Board must consider the principle that every Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. However, “before the presumption of soundness is for application, there must be evidence that a disease or injury that was not noted upon entry to service manifested or was incurred in service.” Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012). The Veteran asserts that his current psychiatric disorder is due to service. A January 2018 VA examination report contains a diagnosis of persistent depressive disorder, with anxious distress. The VA treatment notes contain diagnoses of adjustment disorder. The Veteran has thus met the current disability requirement. In addition, service treatment records (STRs) reveal that the Veteran experienced anxiety and stress in service. From 2013 to 2014, the Veteran consistently sought mental health counseling to discuss the frustrations he faced over an assault charge. The January 2018 VA examination also indicates that the Veteran’s stress and anxiety occurred in service as he faced a charge and was placed on hold for 577 days without being able to transfer or take leave. Therefore, the Veteran has met the in-service injury or event requirement. Accordingly, the dispositive issue in this matter is whether the Veteran’s current adjustment disorder with anxiety and depressed mood is related to his in-service symptoms and stress. Here, there is an implied nexus. The Veteran was charged with assault during service and consequently felt stressed and depressed. As a result, he began attending mental health therapy sessions. During one of these sessions in August 2014, an STR identifies the Veteran’s separation as a result of his assault charge as one of his mental health “risk factors.” This evidence reflects that the Veteran’s current psychiatric disorders stem from an in-service event. In addition, a September 2015 VA social worker note indicated that some of the Veteran’s current psychiatric symptoms were due in part to difficulties he experienced in service. However, in his January 2018 VA medical opinion, the examiner opined that the Veteran’s current psychiatric disorder is not likely due to reports of stress in service. The examiner reasoned that the Veteran’s chronically dysthymic and anxiety disorder “began long before entering service,” emphasizing the fact that the Veteran faced personal challenges including a difficult childhood. Conversely, in a September 2018 brief the Veteran asserts that his service exacerbated or aggravated his adjustment disorder with anxiety and depressed mood. Therefore, the presumption of soundness will be addressed below. The first question in this regard is whether a psychiatric disorder was “noted” on entry into service. See 38 U.S.C. § 1111; Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012). The term “noted,” in 38 U.S.C. § 1111, refers to “[o]nly such conditions as are recorded in examination reports.” 38 C.F.R. § 3.304 (b). In this case, the June 2000 enlistment examination indicated no defect or diagnosis relating to psychiatric disorders. Further, the enlistment examination report’s clinical evaluation reflects that the Veteran’s psychiatric state was normal. Therefore, a psychiatric disorder was not noted at entry. When no preexisting medical condition is noted upon entry into service, a Veteran is presumed to have been in sound condition. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The presumption of soundness has, therefore, attached in this case and can only be rebutted by clear and unmistakable evidence that the Veteran’s disorder was both preexisting and not aggravated by service. Id. Clear and unmistakable evidence means evidence that “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (quoting Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). Here, the January 2018 VA examiner does not provide clear and unmistakable evidence of the two requirements necessary to overcome the presumption of soundness. Although the examiner notes that the Veteran’s chronically dysthymic and anxiety disorder “began long before entering service” and that the Veteran endorsed “depression and excessive worry” in a December 2001 report of medical history, the January 2018 VA medical opinion is inadequate. This medical opinion asserting that the Veteran demonstrated symptoms of a mental health disorder prior to service was based on a history (such as a difficult childhood with neglect) provided by the Veteran. This opinion does not amount to clear and unmistakable evidence that the Veteran’s current disability existed prior to service. Lay statements by a veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. Crowe v. Brown, 7 Vet. App. 238, 246 (1994) (citing 38 C.F.R. § 3.304(b)(1) (supporting medical evidence is generally required to establish the presence of a preexisting condition). Accordingly, the January 2018 VA medical opinion that relied on the lay statements of the Veteran with respect to providing a history of psychiatric symptoms are not enough to rebut the presumption of soundness. Nor is the fact that the Veteran checked a depression box on his December 2001 report of medical history enough to overcome the presumption without supporting medical evidence. The Veteran had no medical diagnosis of depression in December of 2001 and self-reported on a September 2003 post deployment health assessment that he did not suffer from depressed mood and an April 2004 military mental health screener found he had no mental health issues. Thus, based on the foregoing, it cannot be said that the evidence clearly and unmistakably indicates that the Veteran’s current adjustment disorder with anxiety and depressed mood disorder preexisted service. As both preexistence and no aggravation by service must be shown to overcome the presumption of soundness, the presumption of soundness has therefore not been rebutted. Thus, as the evidence reflects that the Veteran’s current psychiatric disorder is related to service and the presumption of soundness has not been rebutted, entitlement to service connection for adjustment disorder with anxiety and depressed mood is warranted, as discussed and found above. See Wagner, 370 F.3d at 1094-96 (stating that in cases where the presumption of soundness cannot be rebutted, claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s current depressive disorder and adjustment disorder are related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for these disorders is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lopez, Law Clerk